On June 18, 2012, Governor Brown directed the Bureau of Electronic and Appliance Repair, Home Furnishings and Thermal Insulation (“Bureau”) to recommend changes to California’s four-decade-old flammability standard for upholstered furniture. Specifically, Governor Brown is seeking to reduce toxic flame retardants in furniture while still providing fire safety. Toxic flame retardants are found in a variety of items, such as high chairs and couches. Evidence suggests that toxic flame retardants harm the environment and are linked to liver and thyroid toxicity, neurological problems, and reproductive issues.

The current guideline requires furniture and children’s products to withstand igniting when exposed to an open flame for up to twelve seconds. This standard has long been criticized by environmentalists, who say it leads to the increased use of flame retardant chemicals. Per Governor Brown’s instruction, this guideline will be revised to reflect modern manufacturing methods that can lower the use of harmful chemicals, including flame retardants, while protecting public safety.

Studies

Studies show that children, women, and firefighters are affected by these toxic chemicals. A 2008 Environmental Working Group study found that toddlers often have three times the level of flame retardant chemicals in their bodies as their parents. In fact, California children have some of the highest levels of toxic flame retardants in their bodies.

Scientists at Cal/EPA have found that California women have higher levels of toxic flame retardants in their breast tissue than women in other states and countries. Researchers have found statistically significant links between flame retardant levels in California women and reduced fertility.

Numerous studies also show that firefighters have significantly elevated rates of cancer, and a study in the Journal of Occupational and Environmental Medicine concluded that firefighters have a significantly elevated risk of cancer that may be caused by toxic chemicals they inhale, such as flame retardants.

The New Trend

Governor Brown’s new direction reflects a growing trend by state and federal agencies to cut flame retardant chemical use. For example, three of the eighteen chemicals that the US Environmental Protection Agency (“EPA”) recently prioritized for risk assessment under the Toxic Substances Control Act are flame retardants. This risk assessment is not regulatory by itself, but it can provide grounds for future EPA regulations.

The EPA has also proposed restricting the use of polybrominated diphenyl ethers (PBDEs) as flame retardants in furniture. The EPA’s proposed rule includes a test rule and a significant new use rule that will restrict new uses of PBDEs unless producers or users provide data that demonstrate the chemicals’ safety. The EPA recently extended the public comment period for this proposed rule due to concerns from the aerospace industry.

Revising Flammability Standards is Consistent With Green Chemistry

While California’s overall “green chemistry” initiative continues to stall, Governor Brown’s direction is consistent with green chemistry principles. The goal of green chemistry is to reduce exposure to toxic chemicals by encouraging products to be designed in a safe manner, rather than waiting to see what damage the product or chemical causes later. In effect, Governor Brown is ordering that the Bureau consider “green chemistry” in revising the flammability standards. Governor Brown has ordered the Bureau to reduce toxic flame retardants, seeking to change the design, manufacture, and/or distribution process for upholstered furniture in order to reduce the generation of hazardous substances. This will in turn reduce toxic exposures, precisely in line with the goals of green chemistry.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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